Article by Travaux Guest Contributor Themis Tzimas.
The Israeli Knesset adopted a few days ago- at the 19th of July- a controversial law, entitled as “Basic Law: Israel as the Nation State of the Jewish People”, which intends to further promote the concept of Israel as a Jewish state. Given the lack of a codified constitution in Israel, this law is considered to be of constitutional nature.
The law labels the state of Israel as the historical homeland of the Jewish people, and determines that “The right to exercise national self-determination in the State of Israel is unique to the Jewish people.”
This is the core of the law: the attribution of the right of self- determination in the state of Israel to only the Jewish people.
While the law does not deprive any citizen of Israel of his or her citizenship or existing political rights, it changes the framework for the implementation of both, for almost 25% of the population since it limits self-determination in Israel, only to the Jewish population.
The current article examines the validity of this provision of the law from the perspective self- determination as jus cogens norm of international law. An additional question is whether it constitutes a type of apartheid law.
‘Self- determination in international law and its internal dimension:
The main issue with self-determination emerges from the fact that while its significance is more or less uncontested, its exact interpretation and application is highly ambiguous. In principle, as a right it constitutes the normative foundation of any community, so that the latter can determine its political, economic, social, cultural status and identity.
In addition to its potential guarantee at a domestic level, it is also protected and guaranteed by the international community and by international law, as a right of both the people of a state and the state.
In other words, the right is expressed through both an external and internal dimension. The external dimension is created through the existence of a state, the respect for its territorial integrity and political independence, as well as through the functional role of the state internally. The internal dimension of the state is conceived as a mechanism within which, the people of the state can enjoy self-government and have several other rights fulfilled.
Within this latter dimension political freedoms and civil rights, the protection of human rights by the state, participation in in the conduct of public affairs directly or through freely chosen representatives, the right to vote are included.
In this sense, states are bound by self-determination as a jus cogens norm of international law, regarding both their international conducts towards other states and their own domestic policies, including the self- government of the people of the state.
The essential part of this latter obligation is what the Friendly Relations Declaration determines: the responsibility of all states’ governments to represent the whole of people “belonging to the territory without distinction as to race, creed or color”, linking such an internal responsibility of states with their right to have their external self- determination respected.
The question of the “self” in self- determination
The “Friendly Relations Declaration” helps in terms of partially clarifying a crucial element: the question of who is entitled to the right of self-determination. While the concept of the “self” in the framework of self- determination has generated significant debates especially in relation to minorities or other groups of populations seeking autonomy and independence from sovereign states, it is rather unanimous that within the framework of a sovereign state, its people as a whole constitute the subject of self- determination.
As Asbjørn Eide’s report to the UN Commission on Human Rights stated, the term people is defined as “… the whole people, the “demos”, not the separate “ethnoses” or religious groups.” The concept of people establishes a spectrum of rights which are reflected into and are guaranteed by the government which constitutes the people’s choice.
The primary bearer of self- determination within states is the political community as a whole. Having said that, we must not forget that indeed, within a larger political community or “demos” there have been cases of multiple, emerging fragmentations. Most often this is the outcome of internal conflicts or of secession movements and therefore of a bottom- up procedure.
The difference in the Israeli case is that the fragmentation of internal self- determination emerges from a “top-down” approach, as a political choice of the Israeli state, through the Knesset, towards the political community.
While, the non –Jewish citizens of Israel are not stripped of their citizenship with the current law, their exemption from internal self- determination constitutes not merely a declaration but a constitutional transformation of the state of Israel, on the basis of religious discrimination and segregation, which follows a variety of discriminatory policies on the same basis.
Therefore, the highest level of law established that there are citizens who are entitled to self-determination and citizens who are not. At the same time, the community which is entitled to self-determination is mutilated through discriminatory legislation, since a certain part of it is deprived of its fundamental right and therefore eventually –and gradually- stops being part of the political community.
Legitimacy of the law under self-determination as a jus cogens norm
On the grounds of the previously mentioned the question is whether the adopted basic law complies with international law or not.
The legitimacy of the law from the perspective of the Israeli legal system is irrelevant for international law due to the international law supremacy principle. Even more such is the case, given that self-determination constitutes a jus cogens norm and therefore it is binding for all states even regardless of their will and domestic legislation.
The question therefore is whether the substance of the adopted legislation complies with self- determination as an international legal norm. The argument here is that it contradicts the latter on a double basis:
First, the exemption of a portion of the population and of the citizens from the right of self- determination, given that they remain part of the population of the same state exempts them effectively from the right to be entitled to any aspect of internal self- determination, on the basis of their religion. They are entrapped into a state which at the highest level is based on discrimination against them. Such a situation is contradictory though both to the collective and to the individual imperatives of self- determination as a jus cogens norm.
Second, the “up-down” deprivation of the right of self- determination violates the element of individual and collective choice which is inherent in self- determination. A pre- existing bond of common and unified Israeli self-determination is breached contrary to the will of the people concerned.
On such grounds, the recent Israeli Basic Law is contradictory to a jus cogens norm. Therefore, from an international perspective it must be considered as lacking legitimacy and thus, null and void.
The recent law raised further concerns –and with good reason- for the nature of the state of Israel. It was only in 2017 that the UN Economic and Social Commission for Western Asia published the report “Israeli practices towards the Palestinian people and the Question of Apartheid”.
The current law seems to be verifying some key findings of this report due to the deprivation of the right to self- determination from parts of the population on religious and indirectly racial grounds as well. It is a debate of historical significance which obviously cannot be analyzed here. It is mentioned in order to show the significance of the passage of this law not only at a national but also at an international level.
Indirectly it indicates the continuous significance of the various dimensions of self- determination as a jus cogens norm and the significance of international law as a guarantor of rights, even contrary to the will of state.